Court Finds Fantasy Stories Obscene

from the obscenity-vs.-free-speech dept

Obscenity law and the First Amendment tend to run into each other from time to time and the whole "I know it when I see it" concept makes things a bit arbitrary in the best of situations. Still, it's pretty standard for people to assume questions of obscenity revolve around imagery -- still or video -- rather than written works. Text and stories often explore taboo subjects, but still are seen to have legitimate literary value. Stories like Vladimir Nabokov's Lolita involve somewhat horrifying concepts, but generally are still considered legitimate works of literature. In an age of easy creation for user-generated content, fan fiction and the like, it is not uncommon for things like slash fiction or related fan fiction to involve incredibly graphic scenes. Whether or not you see the appeal (and, personally, I don't get it at all), it's difficult to step aside and say that a particular form of storytelling should be judged as obscene and illegal. When it's purely fiction, and no one is being harmed or forced to participate and/or experience the work against their will, it is difficult to see what sort of harm has been caused. That is, perhaps, why it is "very rare" for there to be obscenity prosecutions for purely text-based works of fiction. Rare, but not unknown.

Just recently a federal district court in Georgia ruled that a series of stories written or edited by Frank McCoy were obscene, and thus he violated 18 USC 1462 in "transporting" obscene works. McCoy challenged whether or not the stories themselves could be considered obscene. As you might imagine, the subject matter is not mainstream. It is definitely on the extreme. Just reading the descriptions from the court case, which I will not repeat here, made me cringe and feel extremely uncomfortable. We're talking about extremely taboo subjects that are somewhat horrifying even just to read.

But, again, one could argue the same sorts of things about Lolita, or any number of other works. Should they, too, be deemed obscene? It seems like a dangerous slippery slope, especially when we're talking about purely written material. In this case, McCoy even had a distinguished English professor testify on his behalf that the works had "serious literary, artistic, political or scientific value."

In his defense, Defendant relies upon the testimony of an expert witness, Professor Gary Richardson, in order to show the Court that his work has serious literary, political, and artistic value.*fn8 (Docs. 165-4 at 67-90, 165-5.) Professor Richardson is a Professor and Chairman of the Department of English at Mercer University. Professor Richardson previously received a Fulbright Scholarship and is a decorated academic in the field of English and literature. Professor Richardson concluded, in his expert opinion, that Defendant's body of work had literary, political, and artistic value. (Doc. 165-5 at 34-36.) Professor Richardson describes Defendant's stories as love stories, "basic romance plots," and "science fiction." (Doc. 165-4 at 80-81.) While Professor Richardson acknowledges that the predominant themes in Defendant's work involve "social mores" and "may be considered taboo," he testified that these are incidental to Defendant's greater efforts to "undertake an artistic rendering." (Id. at 84.) These themes, including graphic and explicit incestuous sexual abuse, rape, torture, and murder of prepubescent children and young girls, are according to Professor Richardson, a form of "reader entrapment" which reflects his intent to generate political interest. (Id. at 85.)

During his testimony, Professor Richardson also described Defendant's use of complex literary techniques within his body of work that develop the characters and further the plot line;*fn9 including, interpolated tale (the use of competing narratives) and complex resonances. (Id. at 87.) Professor Richardson, as an expert in literature, urges the Court to consider a deeper level and "close reading" of Defendant's work and examine the pornographic "visual gaze" and "central consciousness" are complex "variations on narrative point of view." (Id. at 88.) According to Professor Richardson, Defendant's work "reflects serious thought and serious artistry." (Doc. 165-5 at 4.) Among his reasons in support of his conclusion that Defendant's body of work contains literary value are, for example, Defendant's use of inversion of a biological reality in the story entitled "Rapesuzy." There, Professor Richardson points toward Defendant's use of science fiction-including the use of nanobots-as he explores the complex and timeless themes of the nature of love, the difference and relationship between love and sexuality, and how society is disposed to interact sexually with the rest of the world. (Id. at 6-7.) For these reasons, Professor Richardson concluded that "under a narrow definition" Defendant's work does have serious literary value and further that "from the standards of people who study literature, [Defendant's] stories would manifest serious literary value."*fn10 (Id. at 19, 22.)

But the judge disagreed, saying that "the Court can find no independent value within the work when considered as a whole" and thus judged the work obscene, finding McCoy guilty. In a separate ruling on the same day, the judge also rejected McCoy's attempt to have the case thrown out by arguing that the burden was on the government to prove that the works had no "serious literary, artistic, political or scientific value." In other words, there was a question of whether or not the First Amendment requires the assumption that the work has other value, and then it's the government's job to prove otherwise. But the court rejects that and says that the burden is on McCoy to prove that the work has such value -- though, as noted in the other decision, it then rejected the opinion of an expert who testified to that effect. Here, the judge said that the work deserves no assumption of protection:

Stated in other words, Defendant's short stories are not entitled to a heightened evidentiary standard, as a matter of federal constitutional law, because he believes them to be intrinsically literary, capable of joining the ranks of great classical erotic literature such as Ulysses, Tropic of Cancer,and Lolita.*fn5 See Bench Opinion at 9-12 (Discussion of why the Court concludes that Defendant's short stories, when taken as a whole, lack serious literary, artistic, political or scientific value). Accordingly, though the Eleventh Circuit was not convinced that the musical composition Nasty could speak for itself, this Court has far less trouble declaring that Defendant's sexually explicit narratives, with their only tangentially related plots, can speak for themselves.

The subject matter of McCoy's stories is certainly extremely far from the mainstream, and (as noted) could make many people (including myself) somewhat squeamish. But, it still seems troubling that a court is determining that a written work is flat out illegal, when its creation harmed no one, and the work itself has not been forced upon anyone who did not want it. In fact, within the court's ruling, it notes that McCoy put warnings on the work such that those who might be similarly troubled by the contents would know not to read it:

This story contains very graphic violence against a very young child. If such things bother you (and they do me) I advise against reading this. The story is based upon a line that ran through my head one night, and I couldn't get it out [...basic description of the very taboo subjects included in the story... ] FINAL WARNING !!!! If you think the previous description is based; the actual story is much worse! I strongly advise you to skip this one.

The court, however, uses this "warning" as extra evidence that McCoy knew the work was obscene, and thus uses it against him. That seems kind of silly. After all, wouldn't the concern over obscenity be the impact the work might have on an unsuspecting or unexpecting reader? Yet here, such a reader would be clearly warned off.

I find this troubling on a variety of First Amendment grounds, especially as the standards used in the case could apply to all sorts of works both professionally published (books exploring the taboo are not exactly uncommon) and to a ton of things written by unsuspecting individuals on the internet. While you and I might not find such works to have value, it still seems quite worrying when a court can decide what kind of stories are legal or illegal.

Yet again, Mike can't find a lower bound.

This is a clear enough case to be beyond "free speech". And I see NO slipperly slope resulting, but surely there IS some limit.

Mike definitely has a pattern of anti-morality combined with intricate legalisms to get around plain common law. -- Especially in copyright Go ahead and take what you haven't created. If Megaupload doesn't have a US address, then it can outright infringe! -- And don't worry about Google: you've NO right whatsoever to any privacy on the net or in person! Just let mega-corporations do whatever is technically possible, so long as there's no explicit exact statute against it. -- And over all that, Mike is constantly alarmed at what he deems "moral panics".

Mike expects civilization to continue to exist without ANY principles or morality. -- And yet he's always puzzled when gov't and corporate thugs take moral fudging and tecnicalities as an okay for pillaging and flat-out tyranny. Mike refuses to see that private and public morality are connected.

Re: Re: Re: Re: Yet again, Mike can't find a lower bound.

*eyeroll*

Collapsing flagged comments is not censorship. The comment is still there. You know it's still there. This is no more censorship than putting the playboys behind the counter.

FWIW, I *like* collapsing flagged comments and I wish you could collapse the thread from the flag on down. Too many times the troll rolls in and everyone pounces and it's entirely unrelated to the damn article.

Re: Yet again, Mike can't find a lower bound.

This is a clear enough case to be beyond "free speech". And I see NO slipperly slope resulting, but surely there IS some limit.

Why must there be a limit to free speech? There is no textual support for a limit to free speech in the constitution. The idea that the first amendment protection of free speech is absolute has had adherents sitting on the Supreme Court, so it would be a lie to claim that it was a fringe position.

We all know that you're bad at debate and intellectually dishonest to boot, but you might at least try to support your argument instead of just putting forth assumptions as truths.

Re: Re: Yet again, Mike can't find a lower bound.

Why must there be a limit to free speech?

I'll bite on this one. As much as people would like to suggest that free speech is an absolute, it is like all other rights relative for a few reasons. First and foremost, your speech can have an effect on others, it can be hateful, it can be libelous, or it can be downright dangerous (the old "fire!" example). Free speech is like pretty much every other right, your rights end where mine start. There is a jagged edge, a bit of grey, but free speech itself is not unlimited.

Obscenity is one of those where, as a society, that certain types of free speech are not permissible, as they cause harm to individuals or to society as a whole. It may seem remarkable, but it's one of the area of the law based a little more on morals, and a little less on black or white facts, which is why I think maybe some people here find it harder to understand. As the morality of society moves so does what is considered obscene. Nude movies or images 50 years ago might have been shocking, today they are nearly the fodder of billboard ads and music videos.

Re: Re: Re: Yet again, Mike can't find a lower bound.

"Free speech is like pretty much every other right, your rights end where mine start."

That's right. Your right to live in a world devoid of stuff that offends you ends at the exact spot where my right to free speech begins. You always have the option not to look at stuff that offends you.

Re: Re: Re: Re: Yet again, Mike can't find a lower bound.

"Everyone knows the fatuous verdict of the greatly over-praised Justice Oliver Wendell Holmes, who, when asked for an actual example of when it would be proper to limit speech or define it as an action, gave that of shouting 'fire' in a crowded theatre.

It’s very often forgotten what he was doing in that case was sending to prison a group of Yiddish speaking socialists, whose literature was printed in a language most Americans couldn’t read, opposing Mr. Wilson’s participation in the First World War, and the dragging of the United States into that sanguinary conflict, which the Yiddish speaking socialists had fled from Russia to escape. In fact it could be just as plausible argued that the Yiddish speaking socialists who were jailed by the excellent and greatly over-praised Judge Oliver Wendell Holmes were the real fire fighters, were the ones shouting fire when there really was a fire in a very crowded theatre indeed."

Re: Re: Re: Re: Re: Yet again, Mike can't find a lower bound.

Re: Yet again, Mike can't find a lower bound.

'This is a clear enough case to be beyond "free speech".'

Oh? Have you read the material? If you have, by the way, then you're apparently admitting to a federal crime. But if you haven't, then how can it be "clear"? From the judge's description? You can't tell from that whether the work actually has any value, only that the judge thinks there is none.

An appropriate defense

Defendant: Your honour, my works are not obscene. At least not compared with some things that pass as opinions in certain circles. I present to you Exhibit A: A random collection of comments from Youtube.

Stupid

I thought cases like this went out the window in the late 90's, when the Internet happened, and everyone on the planet realized that curtailing offensive speech was a waste of time.

Still, it could get a lot worse. Look at Mike Diana. As part of his probationary sentence, he was ordered to stop drawing altogether - and to submit to random searches and seizures of his drawings and writings throughout his probation.

So what?

Why should something be illegal even if it IS obscene? As long as no one was hurt in producing it, it's a matter for parents to watch over their own kids. If they're an adult and they don't like it, just don't read it! There are lots of things I would consider obscene - it's a SUBJECTIVE standard, after all. But I have no problem with them existing (again, as long as there was no abuse involved in the creation of it as would be the case with literary works).

I can't link to it, as I don't know where I heard it, but I heard of a recent case where a guy was jailed for looking at real child porn. He got out, but was re-jailed for looking at child porn again - except this time, it was hentai. As in drawn pictures of little girls (described as elves hundreds of years old, but with the looks of young girls).
In my opinion, that was bullshit as well. As horrible as real child porn is, drawings are..well, drawings. I can draw two stick figures in a compromising position, and if I happen to put the text "8 years old" on the one with a dress, does that make it illegal child porn? What if I draw a vertical line next to the 8, making the girl 18?

censorship

In my honest opinion, as a connoisseur of said "obscene" works of erotic fiction, I think that the so-called taboo works of literature made by Frank McCoy may be 'obscene' as I have read many of his works. HOWEVER, in each and every story he puts a disclaimer on his stories that essentially says, "this is a work of fiction. If you find anything that I write disturbing or are not of legal age, PLEASE DON'T READ THIS! This disclaimer adequately warns the potential reader about what they are attempting to read and thus any 'damage' done to the reader is his/her own fault for not complying with said disclaimer.

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So if a work can't compete with a work that has reached recognition as great classical literature, it is obscene or isn't worthy of close inspection to determine it is not obscene? That doesn't seem a very good way to judge something...

STNG

"With the first link, the chain is forged. The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." Those words were uttered by Judge Aaron Satie as wisdom and warning. The first time any man's freedom is trodden on, we're all damaged.

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@ AC: there are two kinds of pedophiles. There is the dictionary definition, "those who LOVE children" and the media-definition of the word; "a child molester". Not all pedophiles are child molesters. In fact, I once knew a pedophile who loved children so much, that he would have rather killed himself than harmed a child in a sexual way. your conflation between the two definitions is very common amongst the public, but the crux of the matter is that you are stereotyping the people based on only the bad examples of pedophilia. not to mention the fact that for most of the human existence, pedophilia was not only common amongst us as a species, but it was actively ENCOURAGED as a result of the short lifetimes that our ancestors had.

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@ AC: there are two kinds of pedophiles. There is the dictionary definition, "those who LOVE children" and the media-definition of the word; "a child molester". Not all pedophiles are child molesters. In fact, I once knew a pedophile who loved children so much, that he would have rather killed himself than harmed a child in a sexual way. your conflation between the two definitions is very common amongst the public, but the crux of the matter is that you are stereotyping the people based on only the bad examples of pedophilia. not to mention the fact that for most of the human existence, pedophilia was not only common amongst us as a species, but it was actively ENCOURAGED as a result of the short lifetimes that our ancestors had.

I'm sure you and your pedophile friend are very gratified to have Techdirtbag Nation rally to your cause. At least they understand you.

Obscenity

"Obscenity" is and has always been an end-run around the US Constitution to enable censorship of any sexual content that happens to go against the prevailing standards of "morality" for a particular time and place. It's a way for the government to censor content while pretending to support free speech.

Much of the stuff we see today would once have been considered obscene. There's something wrong with the law when the legal status of particular work depends on who's looking at it.

Re: Obscenity

Not just *who* is looking at it, but *when* they are looking at it, and *where* they looked at it. "Contemporary community standards". Who, when, and where are very important for determining a "contemporary community standard".

Note that the court ruling specifically and explicitly mentions that the city and state (Albany, Georgia). The Feds will shop around for a community which has a very low standard for "obscene". They did the same thing to Paul F. Little, aka Max Hardcore.

Using GA also puts it under Federal jurisdiction, since the data crossed state lines via the Internet access of a web site.

IMO, "contemporary" should have nothing to do with it, and the "community" in question should be the logical community where such works as this are available/advertised/provided, NOT the physical community where the work was ultimately consumed. Otherwise you end up in the situation where the literary work in your glove box goes from legal to illegal as you enter the city limits of e.g. Albany, GA.

Re: Re: Obscenity

"Not just *who* is looking at it, but *when* they are looking at it, and *where* they looked at it. 'Contemporary community standards'. Who, when, and where are very important for determining a 'contemporary community standard'."

Same thing. The "who" in question is the people who are members of a particular community at a particular time. Same content, different people, different legal outcome.

Some people obviously haven't been fanfiction.net, they'd probably have a heart attack! People who fantasize the rape and torture of children are sick and need help, but thankfully their stories are just that, fantasy. Instead of throwing the books at people, why not try and help them instead?

i suppose, like those in Congress, this judge is too old and set in his ways as to realise that things have changed over the years. old prudes and old farts have a much smaller place in today's society but the ones that hold certain positions still want to impose their opinions on to everyone else! just one more thing that authority in the USA is abusing in the name of 'what is supposedly right'!

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.

"Obscenity", without being rooted in an actual crime involving a victim, such as genuine photographic child pornography, is nothing more than an idea or expression that may make someone "emotionally uncomfortable".

Criminal law has no business wading into the wildly subjective world of feelings.

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Determining "obscenity" should not be up to the government. If there's something you don't like, you always have the option not to listen.

Isn't it funny how censorship is always about what others can't handle?

"The right of others to free expression is part of my own. If someone’s voice is silenced, then I am deprived of the right to hear. Moreover, I have never met nor heard of anybody I would trust with the job of deciding in advance what it might be permissible for me or anyone else to say or read. That freedom of expression consists of being able to tell people what they may not wish to hear, and that it must extend, above all, to those who think differently is, to me, self-evident."

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Also from Hitchens: "Is there anyone you find eloquent enough to decide for you what you could read? [Anyone] you would give the job to decide for you? To relieve you from the responsibility of hearing what you might have to hear?"

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Not quite right...

"Obscenity law and the First Amendment tend to run into each other from time to time..."

No. Obscenity law and the First Amendment tend to run into each other EVERY TIME as they are diametrically opposed concepts. Obscenity is by definition speech that society has deemed offensive. The First Amendment has NO provision for banning speech that is merely offensive even if it is considered offensive to the vast majority of the population. The entire concept behind the First Amendment is that speech that is offensive to one person has to be tolerated in order to protect their own speech from being censored by others who might find it offensive. These two concepts are like oil and water.

Re: Not quite right...

Actually, for the most part it works well. I think few of us can find a reason to provide spank material for extreme pedophiles, and those who do so should be looked down upon rather severely.

Remember, we aren't talking about borderline fantasies about sex with slightly underage boys or girls (say 15 or 16) but rather forced sex with babies and toddlers. It's unlikely you could find many people who would find then material inoffensive, so the obscenity laws work out fine.

Written word has legally gotten a pass for years, but like any system, when the pedos and sickos think they have found a way to bypass the law, they abuse it. There are tons of these sorts of works of erotica which portray rape, animal play, and extreme pedophelia, often all together. As a society, it's pretty easy to spot what is obscene.

This is perhaps another great example of why free speech cannot be an absolute. Even the biggest supporters of free speech would have to admit that this stuff serves no good purpose except as training material for the next generation of people who will abuse your children. That's not a good thing.

Re: Re: Not quite right...

Re: Not quite right...

I find all talk of politics to be personally offensive to my beliefs, therefore all political commentary, ads, campaign slogans, and anything else related to politicians should be entirely eliminated....

"Actually, for the most part it works well. I think few of us can find a reason to provide spank material for extreme pedophiles, and those who do so should be looked down upon rather severely."

Even if it doesn't involve real children? Would you rather pedophiles find a different outlet than fantasy to satisfy their urges?

"Remember, we aren't talking about borderline fantasies about sex with slightly underage boys or girls (say 15 or 16) but rather forced sex with babies and toddlers. It's unlikely you could find many people who would find then material inoffensive, so the obscenity laws work out fine."

Age doesn't make any difference to fictional characters. They react however the author wants them to react. But it seems there's something you'd like to say about "sex with slightly underage boys or girls (say 15 or 16)" in general?

Written word has legally gotten a pass for years, but like any system, when the pedos and sickos think they have found a way to bypass the law, they abuse it.

Bypass what, exactly? Obscenity is always determined after the fact. There is no law that defines it in a way that would create a "loophole" of any kind.

This is perhaps another great example of why free speech cannot be an absolute. Even the biggest supporters of free speech would have to admit that this stuff serves no good purpose except as training material for the next generation of people who will abuse your children. That's not a good thing.

Training material? Are you suggesting anybody could be trained? Could you? As in "there but for the grace of God go I"?

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Even if it doesn't involve real children? Would you rather pedophiles find a different outlet than fantasy to satisfy their urges?

The lesser of two evils option does not minimize the evil. You can go and read up on things like escalation and training to understand why you can't just trade one for the other and feel better.

Age doesn't make any difference to fictional characters. They react however the author wants them to react. But it seems there's something you'd like to say about "sex with slightly underage boys or girls (say 15 or 16)" in general?

Any basic text on sexual urges will tell you that there is a big difference between pre and post pubescent desires. All I am saying is that many of us (except perhaps the geeks around here) had sex before their 18th birthday, but hopefully none before your 10th birthday. There is a really big difference, one that almost anyone can see.

Bypass what, exactly? Obscenity is always determined after the fact. There is no law that defines it in a way that would create a "loophole" of any kind.

The bypass is that once they got a ruling saying that the written word is rarely obscene, they all piled in. Real CP is rare as hell on the open internet, but you can find pedophile spank stories all over the place (just search for the author's name in question on Google...). They saw a way to share and communicate with each other about their experiences and fantasies, while skirting the law by hiding in the first amendment.

Training material? Are you suggesting anybody could be trained? Could you? As in "there but for the grace of God go I"?

Nice attempt at baiting, but you fail. You really do need to go read up a bit before you toss stuff like that out there. Yes, people can be trained, they go from having a basic urge but not knowing a way to express it into being a well trained soldier who learns from these stories ways to lure children.

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The lesser of two evils option does not minimize the evil. You can go and read up on things like escalation and training to understand why you can't just trade one for the other and feel better.

Causing actual harm to children is, in most people's view, evil. Writing about causing harm to children is a lot more dubious. You might be on slightly less shaky legal ground if you had evidence that fiction incited people to immediately molest children. I have not seen such evidence.

Any basic text on sexual urges will tell you that there is a big difference between pre and post pubescent desires. All I am saying is that many of us (except perhaps the geeks around here) had sex before their 18th birthday, but hopefully none before your 10th birthday. There is a really big difference, one that almost anyone can see.

Yes. And videotaping a fifteen-year old having sex is illegal, because it's considered to be exploiting and harming the child. Writing about a fifteen-year old having sex does not harm the child, and is not illegal. When the court prosecutes someone for molesting a child, they are not required to tailor the punishment based upon the child's age.

The bypass is that once they got a ruling saying that the written word is rarely obscene, they all piled in. Real CP is rare as hell on the open internet, but you can find pedophile spank stories all over the place (just search for the author's name in question on Google...). They saw a way to share and communicate with each other about their experiences and fantasies, while skirting the law by hiding in the first amendment.

Honestly, I'm not sure where to even start on this one. "Skirting the law by hiding in the first amendment" is equivalent to "obeying the law". People do legal things on the internet when they want to.

Nice attempt at baiting, but you fail. You really do need to go read up a bit before you toss stuff like that out there. Yes, people can be trained, they go from having a basic urge but not knowing a way to express it into being a well trained soldier who learns from these stories ways to lure children.

Speaking as someone who feels no particular urge to molest children, I also feel no particular urge to read a lot of other people's fantasies about molesting children. I think that you're confusing cause and effect, here. As far as "ways to lure children" go, I suspect that the children in molestation fantasies are not really attracted by the same things as actual children. See also Ashcroft v. Free Speech Coalition: "...there are many things innocent in themselves, however, such as toys, movies, games, video games, candy, money etc. that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused."

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Causing actual harm to children is, in most people's view, evil. Writing about causing harm to children is a lot more dubious. You might be on slightly less shaky legal ground if you had evidence that fiction incited people to immediately molest children. I have not seen such evidence.

There are any number of studies out there that show that there are people who have these urges but do no act on them for various reasons. Getting in contact with like minded people, or getting what amounts to instructional stories from people may push them to actual acts. You can look around Google, I am sure you will find interesting reading to expand you mind on this horrible tendency that exists in some.

videotaping a fifteen-year old having sex is illegal, because it's considered to be exploiting and harming the child. Writing about a fifteen-year old having sex does not harm the child, and is not illegal. When the court prosecutes someone for molesting a child, they are not required to tailor the punishment based upon the child's age.

Part of this is a question of black and white law, the day you turn 18 you are old enough to get naked on camera and die for your country, but not drink. Arbitrary settings which we accept as law for various reasons. I could wish that some of the pirates here were so virtuous in respecting the law! In some places (such as Canada) writing about underage sex for titilation / pleasure was made illegal. In the US, there has been great protection for the written word, but since some choose to push the very limits, there is always someone who will step over.

I'm not sure where to even start on this one. "Skirting the law by hiding in the first amendment" is equivalent to "obeying the law". People do legal things on the internet when they want to.

It's actually the idea that since someone erotica has been deemed legal in certain ways, that these people decided to push it to the nth degree and go all out pedophile in the nastiest way possible.

Let's look at it a different way. Straight porn videos are for all intents and purposes legal now. Even a recent past AG was quoted as saying that some porn does garner 1st amendment protection as legal and protected speech. Yet, on the other hand, guys like Paul Little have gone to jail for obscenity - mostly because he pushed the limits and went beyond the public's comfort zone. Obscenity isn't a black and white issue, and it's a poor judgement system legally, but it is what it is. I doubt there are very many people here on Techdirt who would enjoy extreme pedophile fiction, and most would find it disgusting and degrading. That is pretty much the standard for finding something obscene.

Speaking as someone who feels no particular urge to molest children, I also feel no particular urge to read a lot of other people's fantasies about molesting children. I think that you're confusing cause and effect, here.

You and I are normal people and don't have these urges. However, some people do. Most of them apparently never act on the urges, instead getting their satisfaction with the Sears catalog or whatever. Most people who collect CP (in all it's forms) have not acted on their urges before obtaining the material, but some will after. They can learn from the stories of others ways to achieve those goals.

If you don't think people follow example, consider how many people have been killed lying down on the line in the middle of the highway following a certain movie release. These aren't people who "had the urge" to die, but they did it anyway. People learn, good and bad, from example.

yet we would not expect those to be prohibited because they can be misused

Nobody is prohibiting writing. That is one of the least honest arguments in that case, the typical misdirection of those who seek to obscure their bad acts behind smoke and mirrors and logical dead ends. Some people think that a scud missile launcher makes a nice lawn ornament, but that isn't going to make owning a real one any more legal.

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how 'bout 'causing actual harm to children' by droneing them (an arguable war krime)to death from half a planet away ?

a 'good' or an 'evil' ?
most would say 'evil' (why am i guessing you will make excuses for your war-kriminal betters?), but NONE of the perps of these krimes against humanity will EVER see an indictment, much less trial, much less prison...

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I don't need to "read up a bit" to know that people can be trained. Your claim is that people can be trained into molesting children, for which you offer no proof whatsoever. You're no different than the idiots who think watching violent movies and playing violent video games turns teenagers into murderers.

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"Any basic text on sexual urges will tell you that there is a big difference between pre and post pubescent desires."

I don't doubt it, but it's quite irrelevant. A book describing illegal sex with a minor is describing illegal conduct whether the minor is 6 or 16. One may be more disturbing than the other, but they're both works of fiction and no one is being hurt or forced to read the books.

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Don't like it? Just close the book!

You miss the point. It isn't about just the content of the book or my reading it, rather the concern is the effects of that book on society as a whole and certain impressionable members who may choose to act differently after reading it.

Left alone and permitted without restriction, this sort of thing expresses that society thinks this is okay, acceptable in it's own way, and that the acts portrayed in it are equally acceptable.

Those acts are not acceptable. Discussion and enjoying of those acts, even as "fiction" certainly runs the risk of eroding society and encouraging bad acts.

Re: Re: Re: Re: Re:

It isn't about just the content of the book or my reading it, rather the concern is the effects of that book on society as a whole and certain impressionable members who may choose to act differently after reading it.

Like I said in an earlier post, censorship is always about what others can't handle. It's never how "this book will turn me into a monster", but how the book will turn others into monsters. Such arrogance!

Also found in this law

"any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made"

I'm surprised this whole law wasn't declared unconstitutional. I mean, I understand the desire to ban "anything immoral", but that's so open to interpretation that it seems to be impermissibly vague. I don't like the idea of a law which automatically incorporates "community standards". If you want to make written depictions of child sex illegal, then you should explicitly say so, and not leave people to guess.

I mean, we ordinarily have specific laws against things like arson and murder. We don't just leave it to some generic law that prohibits "indecent acts" with the implication that murder and arson are indecent. Because that would be silly. Yet somehow, it's deemed acceptable here.

This entire CHAPTER of the law has some rather over the top punishments, too. Using an epithet on a postcard can get you 5 years. Because... what, the mailman might get offended?

"interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934)"

Re: District Court In Error

Problem is the Law

The main problem is the law; the second problem is the judgement.

First, there is no category in the law of "obscene" versus "really really disgustingly obscene". It's either obscene or not. Once this precedent stands, then *ANY* material that offends the community standards of Lower Podunk, Georgia is grounds for the same prosecution in that jurisdiction. They just found a slam-dunk test case that guarantees a conviction. Now, Fifty Shades or Tropic of Cancer are fair game.

Next - where's the crime. If the material was composed, uploaded, and stored outside the state, in which way is the author or web site responsible? That blame belongs to the person who initiated and committed the act of transporting that data by downloading it from outside the jurisdiction? Since the author had no control (presumably) over how the web site operates, then the total responsibility belongs to the website if they permit inadvertent (i.e. non-deliberate) downloads.

Finally, the law has to be sorted out so that a person cannot be held accountable somewhere where they have not set foot and did not deliberately, specifically target. If I live in New York and you make Widgets in LA, I cannot travel to Witchita to buy one, solely to sue you there. (Although if it's a patent, apparently I can hire someone to sue for me in Texas.)

With prosecutions like Kim Dotcom, we see the USA applying (what a polite word for arm-twisting) its standards to people who have never even set foot in the USA. The Americans could have saved them and their toadies a lot of embarrassment by simply using rendition, if they think these are digital terrorists...

If they couldn't convict McCoy where he lives, maybe there's a moral in that fact. If the court could not convict someone in the jurisdiction where the substantial part of the act - creating the obscenity or hosting it - was done, there's a moral about free speech in there somewhere.

“And this is my final point. About drug, about alcohol, about pornography… whatever that is. What business is it of yours what I do, read, buy, see, or take into my body as long as I do not harm another human being on this planet.” (Crowd Cheers!) “And for those of you out there having a little moral dilemma in your head on how to answer that question I’ll answer it for you… NONE OF YOUR FUCKIN BUSNIESS!!”

Re:

Extreme bias, legal error

Judge quoted a finding about harm to children, but that finding refers to ACTUAL children, not fictional characters.

Judge did not review the whole work, only a sample, which is a classic error always resulting in an overturned verdict upon appeal.

Judge substituted his own views for the testimony of an expert witness.

Judge misinterpreted the legal standard - it's not serious artistic, literary, political AND scientific value (if it was, all four would have to be present). The standard is that it's legal if there is serious artistic, literary, political OR scientific value. The expert testimony shows that there is serious literary and political value.

This is a heavily biased judge who flagrantly disregarded the law in order to inflict the financial costs of an appeal on the innocent defendant. Judicial misconduct at its worst.

Re: Extreme bias, legal error

This. This would not stand on appeal if Frank wanted to be a hardass on this. However, at this point, he is probably becoming weary of the whole damned thing (that is what the prosecutors want, they want to wear someone out so that they will give up and say "I'll plea!") and just wants it to be over at this point.

feading

Thought not to read wrong books etc , but once u read an u can't stop eading knowing that its wrong , its like illegal drugs, we always so curious but we know what's right and wrong but does that stop us?